It is very often the case that before or during the course of a marriage or a civil partnership, the parties will have acquired assets either in their sole name or jointly with their spouse or civil partner.
If the marriage or civil partnership later breaks down, the parties will need to consider what will happen to those assets and whether any other orders are required (e.g. in relation to maintenance or pensions). Adams can help you to resolve these issues.
In our experience, financial arrangements on divorce or dissolution usually work best when the parties have been able to make their own decisions about their finances rather than if they have had a decision imposed upon them by the court. For this reason, we will try to encourage you to think about alternative dispute resolution methods and assist you to come to an agreement with your spouse or civil partner in the first instance if possible.
There are a number of ways that we can assist you to reach an agreement with your spouse or civil partner about the division of your assets. Please see our mediation page for more information (link to mediation page)
If you are able to reach an agreement with your spouse about the financial aspects of the relationship breakdown, we can record the terms in a consent order which can then be sent to the court for approval. The court will usually approve the order without either party being present. Once the order has been approved, it is legally binding and enforceable. This has the benefit of giving the parties certainty that neither of them can go back on what has been agreed between them. We can offer a fixed fee to draw up the consent order for you – please contact us for more information.
Separation agreements, like the name suggests, are agreements entered into by both parties upon separation.
You may be thinking about separating from your spouse or civil partner. Alternatively you may have separated, perhaps very recently, and though you’d like to get your financial affairs in order, you may not be ready to take the step of petitioning for divorce just yet.
In such circumstances, you may find that a separation agreement is very useful. It can deal with a variety of issues on separation such as who will meet obligations and outgoings and for how long, what will happen to joint debts, what will happen to property, what maintenance is to be paid and it can even set out where it has been agreed that the children will live and how often they will see the other party.
A separation agreement is not legally binding. However, if it has been entered into with the benefit of independent legal advice and following full and frank financial disclosure by both parties’, it will be very strong evidence of the parties’ intentions and the court will be reluctant to depart from it except in exceptional circumstances.
It is important to ensure that you obtain legal advice to ensure that we give you the best chance of ensuring that the agreement can later be relied upon if necessary.
We will take information from you about what has been agreed, give you advice about the terms which have been agreed and whether it is likely to be seen as fair and we can draft the separation agreement for you.
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If attempts to resolve the financial aspects of the divorce or dissolution are unsuccessful, you may need to consider applying to the court for a financial remedy. We will usually do so when we reach the Decree Nisi stage of the divorce (because it is not possible for the court to approve or make an order until this stage of the proceedings.
Types of order that the court can make
There are a number of different types of remedy available to the court. These include the following types of order;
- Property adjustment – an order transferring or settling property
- Periodical payments – an order for payment of money on a regular basis
- Lump sum – an order for a lump sum payment (sometimes by instalments)
- Pension sharing or attachment – various ways of sharing pension rights
Making the application and the court process
We will prepare your application for you and send it to the court for issue.
When your application has been issued by the court, both parties will be required to exchange information about their financial affairs. This is known as financial disclosure and the court will expect the parties to be full & frank about their finances – there are sanctions for failure to do so. The application will also be listed for a First Appointment (the first hearing).
When disclosure has been forthcoming, and both parties are satisfied that the information to hand is complete and accurate, we can usually start to negotiate a potential financial settlement.
Sometimes it is possible to come to an agreement before the First Appointment. In general however, most financial remedy applications do reach at least this stage. It is quite possible that an agreement can be reached at the first hearing, provided that the parties are satisfied that there has been full and accurate disclosure.
If it is not possible to reach an agreement, or there is further disclosure outstanding, the Court will give directions as to how the matter should proceed. These directions usually consist of case management provisions i.e. the disclosure of any outstanding financial information, valuation of properties which cannot be agreed or gathering additional evidence for instance. The court will also list the matter for the next hearing which is known as the Financial Dispute Resolution hearing (or FDR).
Many cases will settle before or during the FDR hearing. At this hearing, both parties’ representatives will make submissions to the Judge setting out what their client is seeking. Having heard those submissions, the Judge will then give an indication of the likely order that the parties could expect to receive should the matter proceed to a final hearing. The parties then have the option of negotiating an agreement based upon the indications given the Judge, or setting the matter down for a final hearing if an agreement still cannot be reached. However, the indication given by the Judge is often very persuasive and can help to narrow the issues in dispute. It is for this reason that many cases settle at this stage or shortly afterwards.
The factors which the Court will take into account
When determining what constitutes a “fair” settlement in your case, we will take various matters into account as set out in s.25 of the Matrimonial Causes Act 1973.
The factors which will be taken into account include the following;
- The income, earning capacity, property or other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including any potential increase in earning capacity.
- The financial needs, obligations and responsibilities of both parties.
- The standard of living enjoyed by both parties within the marriage.
- The age of each party and the duration of the marriage.
- Any physical or mental disability of either party.
- Any contributions which either party has made to the marriage or is likely to make.
- The conduct of each party (if it is considered that to disregard the behaviour would be unfair).
- The value to each party of any benefit which, upon dissolution of the marriage, that party will lose the chance of acquiring.
Since the court has a very wide discretion to apply the factors set out above and due to the fact that every case is different on its facts, it is useful to have clear and comprehensive legal advice throughout the process.
Since the process of determining a fair financial settlement upon divorce or dissolution can take some time resolve, it is important to ensure that all of the assets of the marriage are maintained as far as is possible.
Unfortunately, it is sometimes the case that one of the parties will attempt to try to dispose of assets to prevent the other party from establishing a claim or an interest in them.
If this should occur, it is very important that urgent consideration is given to obtaining a financial injunction. This can prevent a disposition before it occurs or can sometimes be obtained to freeze proceeds received from a disposal which has already taken place. It may also be possible to apply to ask the court to set aside the disposal.
We will need to take detailed instructions from you about your situation to establish whether it is possible and necessary to apply for a financial injunction in your case. In exceptional cases, these applications may be made without informing the other party that you are doing so.
If you suspect that there is any possibility that a disposition has been or is about to be made, it is important that you contact us as a matter of urgency so that we may meet with you to discuss the options and the merits of your case.
Free information meeting
We are pleased to offer all potential new clients a free, no obligation information meeting.
The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.
We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.
for more information.